Delhi High Court
M/S Pasupati Spinning And Weaving ... vs Smt. Niti Jain & Ors. on 1 December, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No. 1060/2014
% 1st December , 2014
M/S PASUPATI SPINNING AND WEAVING MILLS LTD. & ANR.
......Petitioners.
Through: Mr. Navin Chawla, Adv. Mr. Aditya
V. Singh and Mr. Anurup Narula,
Advocates.
VERSUS
SMT. NITI JAIN & ORS. ...... Respondents
Through: Mr. Rahul Shukla, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This petition under Article 227 of the Constitution of India
impugns the order of the trial court dated 21.10.2014 by which the trial court
has directed the petitioners/defendants to lead evidence first.
2. At the outset I must mention that powers under Article 227 of
the Constitution of India are extraordinary and discretionary powers and are
not meant to be exercised unless there is a grave prejudice or injustice by the
trial court passing an order. Ordinarily, therefore original courts which are
CMM-1060/2014 Page 1 of 3
seized of the matter have powers to pass such orders which are otherwise in
accordance with law, more so in the facts of the present case where the
impugned order simply follows an earlier order passed in the suit by a
learned Single Judge of this Court when the suit was pending in the original
side of this Court and whereafter on account of change of pecuniary
jurisdiction, the suit was transferred to the District Courts.
3. The subject suit is a suit for recovery of possession, damages
etc alleging tenancy of the present petitioner no.1, and in which suit issues
were framed by learned Single Judge of this Court on 5.2.2013. By the same
order the court ordered the petitioners/defendants to lead evidence first
because the execution of the lease deeds was admitted by the petitioners and
therefore it is the petitioners who had to show as to why the lease deeds
executed by them were not binding.
4. I do not find any illegality or perversity in the impugned order
because once the order dated 5.2.2013 became final, by subsequent
application the finality of that order directing the petitioners/defendants to
lead evidence first cannot be disturbed.
5. Learned counsel for the petitioners very vehemently argued that
subsequently on 22.3.2013 the onus to prove issue no.2 instead of being put
CMM-1060/2014 Page 2 of 3
on the defendants was put on the parties and hence the defendants were not
required to lead the evidence first. However, I specifically put a query to the
counsel for the petitioners that what was the prejudice to the petitioners in
leading evidence first but obviously no answer could be given. It be noted
that as per a catena of judgments of the Supreme Court once evidence is led
by both the parties the issue of onus pales into insignificance.
6. Learned counsel for the petitioners also argues that an
additional issue was framed with respect to whether petitioners/defendants
have attorned to the respondents/plaintiffs, however, I fail to understand as
to how that can change the finality of an order with respect to directing the
petitioners/defendants to lead evidence first in the facts of this case and
which order dated 5.2.2013 had become final.
7. In view of the above, I do not find any merit in this petition.
The trial court in terms of the impugned order has rightly followed the
earlier order passed by learned Single of this Court directing the
petitioners/defendants to lead evidence first.
8. Dismissed.
DECEMBER 01, 2014 VALMIKI J. MEHTA, J.
ib
